1. Before the Court is the Notice of Motion dated 08th December 2025 in which Jemima John, the Respondent/Applicant seeks to strike out the appeal on the ground that the Memorandum of Appeal was filed outside the statutory period provided under Section 79G of the Civil Procedure Act.
2. Evans Ogeto, the Appellant by a Replying Affidavit sworn by on 14th May 2026 avers that that the delay was neither intentional nor inordinate and further states that the appeal raises arguable issues touching on liability and ownership of the motor vehicle which ought to be determined on merit.
3. It is not disputed that the judgment appealed from was delivered on 23rd October 2025 while the Memorandum of Appeal was filed on 26th November 2025, outside the prescribed statutory period.
4. The Court is guided by the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution requiring courts to administer justice without undue regard to procedural technicalities. The court is mindful that procedural timelines are intended to ensure orderly conduct of litigation. Even so, Article 159(2)(d) of the Constitution and the overriding objective under the Civil Procedure Act require courts to avoid undue reliance on procedural technicalities where substantive justice can still be achieved.
5. In Boy Juma Boy & 2 OTHERS V Mwamlole Tchappu Mbwana & Another [2014] KECA 830 (KLR), the Court of Appeal observed that the oxygen principle is intended to facilitate the just, expeditious and timely disposal of appeals.
6. The delay in filing the appeal herein was three days. The Memorandum of Appeal raises substantive questions relating to ownership of the motor vehicle, proof of liability, and the evidentiary value of the police abstract report. In the court’s view, striking out the appeal in the circumstances would amount to an unduly rigid application of procedural rules.
7. The court accordingly finds no justification for terminating the appeal at this stage.
8. Consequently, the Notice of Motion dated 08th December 2025 is hereby dismissed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal.
2. Evans Ogeto, the Appellant by a Replying Affidavit sworn by on 14th May 2026 avers that that the delay was neither intentional nor inordinate and further states that the appeal raises arguable issues touching on liability and ownership of the motor vehicle which ought to be determined on merit.
3. It is not disputed that the judgment appealed from was delivered on 23rd October 2025 while the Memorandum of Appeal was filed on 26th November 2025, outside the prescribed statutory period.
4. The Court is guided by the oxygen principles under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution requiring courts to administer justice without undue regard to procedural technicalities. The court is mindful that procedural timelines are intended to ensure orderly conduct of litigation. Even so, Article 159(2)(d) of the Constitution and the overriding objective under the Civil Procedure Act require courts to avoid undue reliance on procedural technicalities where substantive justice can still be achieved.
5. In Boy Juma Boy & 2 OTHERS V Mwamlole Tchappu Mbwana & Another [2014] KECA 830 (KLR), the Court of Appeal observed that the oxygen principle is intended to facilitate the just, expeditious and timely disposal of appeals.
6. The delay in filing the appeal herein was three days. The Memorandum of Appeal raises substantive questions relating to ownership of the motor vehicle, proof of liability, and the evidentiary value of the police abstract report. In the court’s view, striking out the appeal in the circumstances would amount to an unduly rigid application of procedural rules.
7. The court accordingly finds no justification for terminating the appeal at this stage.
8. Consequently, the Notice of Motion dated 08th December 2025 is hereby dismissed. The appeal is deemed as properly on record. Costs shall abide the outcome of the appeal.